Fair procedure
As stated earlier the Tribunal considers unfair dismissal in a two stage process firstly whether the reason for the dismissal was fair reason and secondly whether it was carried out procedurally in a fair manner.
Thus an employee can be found to have been guilty of having committed an act of misconduct which justifies dismissal yet still be unfairly dismissed if the employer did not follow fair procedures.
In such cases the employee may not receive an award of compensation equivalent to what would be awarded if the dismissal was unfair on substantive grounds.

In the case of Polkey v Dayton Services Limited [1988] it was held by the House of Lords that procedural irregularity will generally render any subsequent dismissal unfair and that it was wrong to take into account an employer’s case that carrying out a fair procedure would have made no difference to the decision to terminate. However this would not be applied in all cases and there would be exceptions where the employer would not be expected to go through normal procedure in terminating. For example where an employee is caught red handed stealing from the employer the employer may not be required to carry out an investigation in accordance with it’s normal procedures as that may be futile.
The fairness of the procedure is determined again the reason for the dismissal. If the reason relates to capability then the employer will be expected to have: -
• investigated the matter,
• informed the employee of the criticisms of their work
• seeking employees feedback
• issuing warnings and
• offering support or training if required.

The ACAS (“Advisory, Conciliation and Arbitration Service”) code of conduct recommends certain minimum guidelines that employer’s disciplinary procedure should include such as the stages in a disciplinary investigation, warnings, opportunity to see the evidence and the right of the employee to be accompanied to disciplinary meetings.